Five years on, South China Sea ruling keeps making waves

By Viet Anh   July 19, 2021 | 04:55 pm PT
Five years on, South China Sea ruling keeps making waves
Filipino fishermen rest after arriving from a week-long trip to the disputed Scarborough Shoal, in Infanta, Pangasinan province, Philippines, July 6, 2021. Photo by Reuters/Eloisa Lopez.
The arbitral tribunal ruling on the South China Sea in 2016 has generated lasting influence and is set to have greater normative authority in the future, experts say.

On July 12, 2016, the Permanent Court of Arbitration in The Hague, the Netherlands, rejected China's nine-dash line claiming 90 percent of the South China Sea, known as the East Sea in Vietnam.

Assessing the impact of the tribunal’s ruling, Cmdr. Jonathan Odom, Military Professor of International Law, Marshall Center for Security Studies, a German-American partnership in Germany, said it gives the Philippines and other countries a powerful podium to stand on.

Though China does not recognize it, the ruling is still a binding law, Odom said, adding that this was his personal opinion, and he was not presenting the view of Marshall Center.

Professor Jay Batongbacal, Director of the Institute for Maritime Affairs and Law of the Sea, University of the Philippines, said the biggest impact of the ruling was acknowledgement by the international community of the way in which the United Nations Convention on the Law of the Sea (UNCLOS) should be applied and interpreted in relation to the South China Sea.

Regarding disputes in the area, regional countries like the Philippines, Vietnam, Malaysia, and Indonesia, basically accept that the proper way to allocate jurisdiction and resources in the South China Sea is in accordance with the award. Major countries like the U.S., Japan, Australia, Canada, Germany and France have also expressed positions consistent with the tribunal’s ruling.

"There is clearly an alignment that has formed around the ruling, invalidating China's excessive claims and asserting respective parties rights and obligations as they carry out activities in the South China Sea."

Batongbacal said the international community is increasingly calling upon China to comply with the ruling, and has been more vocal about it.

Hoang Viet, a lecturer with the Ho Chi Minh City University of Law, said that over the last five years, the ruling has prompted a range of countries to make their position on the South China Sea clearer.

He said that in particular, after Malaysia sent its verbale notes to the United Nations citing the ruling in 2019, several countries have, directly and indirectly, expressed their stand on the need to uphold international law.

In early 2021, Japan joined in.

"The award created a big effect," Viet said.

Regarding the ruling’s impact on China, James Kraska, Chair and Charles H. Stockton Professor of International Maritime Law, the Stockton Center for International Law, the Naval War College in the U.S., noted that China was talking less about the nine-dash line and more about entitlements from rocks and islands. Beijing has realized that nobody outside of China accepts the nine dash line, Kraska said.

"The tribunal has imposed a very large cost on China. It has put China on the defensive with regard to its activities that are not consistent with the ruling."

‘Waste paper?’

Commenting on assessments that the ruling has little value in the South China Sea as China is still being aggressive and intrusive, Viet with the Ho Chi Minh City University of Law said this would be understandable if people had expected that the ruling would make Beijing de-escalate.

The key issue is that the ruling does not have an enforcement mechanism as domestic law. If countries force China to comply, it can lead to military conflict. Therefore, compliance depends on countries' good faith, in accordance with The Vienna Convention on the Law of Treaties.

However "the ruling still has huge value in its legal aspect," Viet said.

He said that though China has said the ruling was "a piece of waste paper", Beijing has been making a lot of effort to reject the ruling by funding scholars to publish research on different sites.

Recently, on July 12, Chinese expert Wu Shicun, President of the National Institute for South China Sea Studies, wrote an article titled "South China Sea arbitral award should be buried in the dustbin of history" in the Global Times.

"If China sees the ruling as invalid, why does it have to take so much effort (to discredit it)?"

While he agreed with Viet on the legal value of the award, Kraska said international law cannot solve all the problems and the ruling is not going to magically transform the relationship between countries.

Therefore, what is needed is that like-minded states in Southeast Asia such as the Philippines, Vietnam, Indonesia, and more powerful states like the U.S., Japan, Australia, India, and some NATO countries add authority to the ruling, by continuing to talk about it and act in accordance with it.

"Legal decisions have greater effect as time goes on," he said

Philippine Coast Guard join Japan Coast Guard in a communication exercise involving BRP Cape San Agustin, BRP Bagacay and patrol ship Echigo at Basilan Strait, November 21, 2018. Photo courtesy of Philippine Coast Guard.

Philippine Coast Guard join Japan Coast Guard in a communication exercise involving BRP Cape San Agustin, BRP Bagacay and patrol ship Echigo at Basilan Strait, November 21, 2018. Photo courtesy of Philippine Coast Guard.

Odom said the notion of the ruling having little value is "what China wants to see."

He recalled that the Chinese Society of International Law had issued a 400-page study written by over 100 experts, arguing that the ruling violated international law. However, many of the experts were not lawyers and they were not neutral experts. Therefore, no matter how many Chinese experts announce their opinions, it does not make the ruling any less binding on China.

Like Viet, Odom also suggested that the ideal action would be for related countries to continue to invoke the ruling. On the ruling's anniversary every year, countries like Vietnam, the U.S., Australia should issue statements, emphasizing that it cannot be wished away.

Odom noted that the statement made by the U.S. this year showed that though President Biden and his predecessor Trump do not agree on many issues, they concur on the importance of the tribunal’s ruling.

What next?

Batongbacal said the ruling may play a role in the presidential elections next year in the Philippines. He expected the new government to consistently assert its rights in jurisdictions based on the ruling.

Furthermore, he felt that concerned countries should focus on the point that China does not have any valid historic claim because it is probably the most important aspect of the ruling.

Viet agreed with the recommendation of the Philippines's lawyers that territory claimants in ASEAN should increase their cooperation in making clear overlapping areas and carry out joint patrols of the South China Sea to uphold the ruling. ASEAN can also cite the award in negotiating the Code of Conduct (COC) with China, he said.

Odom said he hopes the next administration in the Philippines will demonstrate a clear and consistent view on the ruling. This could help create a common voice for some ASEAN members who have direct interest in the area and lead to a possible joint verbal note, he added.

He also suggested small countries in the region strengthen maritime law enforcement in their maritime zones. For example, in the South Pacific, some countries do not have enough resources to fully police their exclusive economic zone against illegal fishermen, so they invite other countries to participate in joint law enforcement under the authority of the coastal state. Such activities are fully in compliance with international law, Odom confirmed.

Kraska said that if claimants in ASEAN could agree on some set of rules regarding the ruling, the international community will join and support them and China will be isolated.

In fact, China's actions creating fear were making countries cooperate more closely, he said.

The ruling will have greater normative authority as countries continue to cite it, he added.

"Hopefully one day, when China has a more reasonable government, they will be more accommodating of the interests of their neighbors."

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